The district court denied the motion to vacate sentence pursuant to 28 U.S.C. Sec. 2255 filed by Rogers, a federal prisoner. We affirm.

2

Appellant is serving a five year sentence imposed upon him on June 28, 1971, for a violation of the Dyer Act, 18 U.S.C. Sec. 2312. In his Sec. 2255 motion he contends that the court relied on a prior constitutionally infirm conviction in fixing the length of his sentence. Appellant relies upon United States v. Tucker, 1972, 404 U.S. 443, 92 S.Ct. 589, 30 L. Ed.2d 592, in which the Supreme Court held that where a judge, in assessing sentence, gives explicit consideration to a prior conviction which is subsequently determined to be invalid, the defendant is entitled to be resentenced without consideration of that invalid conviction.

3

In the case now before this Court, the record fails to disclose that the sentencing judge gave explicit consideration to the prior conviction.1 Even though the earlier conviction was referred to in the presentence report, the court, in denying relief, specifically certified that the sentence was not enhanced by the existence of that earlier conviction.2 Therefore, the present sentence not being founded upon a prior invalid conviction, Tucker is inapplicable. It is thus unnecessary to examine the legality of the prior conviction.

It is significant that Rogers' two codefendants received sentences identical to that imposed on appellant: 5 years confinement under the terms of Title 18 U.S.C. Section 4208(a)(2), which authorizes early parole

See United States v. Marcello, 5 Cir. 1970, 423 F.2d 993, where we pointed out: "A Judge is by no means confined to a history of criminal convictions. The activities of the Defendant, including his relation to public and police authorities, his position in the community and other factors bear upon his life and lead the sentencing Judge to a balance on (i) punishment, (ii) deterrence and (iii) rehabilitation."